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Sunday, November 6, 2016

GateHouse: Top cop does harm beyond election

Matthew T. Mangino

GateHouse Media

November 5, 2016

What could FBI director James Comey learn from the medical
profession? Do no harm. Doctors take the Hippocratic Oath which includes, “Also
I will, according to my ability and judgment, prescribe a regimen for the
health of the sick; but I will utterly reject harm and mischief.”

As the top law enforcement officer in the country, Comey has
recklessly caused harm and mischief in the midst of the most important endeavor
any country can undertake — the election of a national leader.

Comey’s conduct this past summer and again last week was
contrary to the directives of the Justice Department, the FBI and clearly
beyond what most elected or appointed lawmen would do in the midst of a
contentious and bitter election.

As Charles Kaiser wrote for CNN.com, “His (Comey’s) gratuitous disclosure of the
discovery of new emails (which may or may not have anything to do with Hillary
Clinton) has done more to politicize the bureau than anything done by any other
FBI director since (J. Edgar) Hoover died in office in 1972.”

Comey’s problems started in July when he took the
unprecedented action to publicly disclose that an investigation into Clinton’s
emails as Secretary of State did not rise to the level of a prosecutorial
offense. The FBI usually holds press conferences to talk about charges being
filed, one would have to look long and hard to find a news conference by the
director of the FBI saying charges would not be filed.

Then last week, Comey took the unusual step of informing
Congress — through a vague letter — that the Clinton email investigation was
back on. He justified this baffling and inappropriate letter, less than two
weeks from Election Day, on the basis that he had previously testified to
Congress that the matter was “completed.”

Comey was justifying his latest disregard for Justice
Department policy by invoking his previous disregard for Justice Department
policy. He was advised in July and again last week by Attorney General Loretta
Lynch and other high ranking Justice officials that his announcement could run
afoul of department policy.

CNN’s Kaiser wrote that former Justice Department spokesman
Matt Miller said Comey’s decision to ignore the advice of leadership at Justice
was stunning.

“I think he has a lot of regard for his own integrity,”
Miller told the Washington Post. “And he lets that regard cross lines into
self-righteousness. He has come to believe that his own ethics are so superior
to anyone else’s that his judgment can replace existing rules and regulations.
That is a dangerous belief for an FBI director to have.”

Jack Goldsmith, a Harvard Law School professor and Assistant
Attorney General in the George W. Bush Administration and Benjamin Wittes wrote
in Time Magazine that Comey should have at least said the following after his
unsolicited “October surprise:”

To say that something has to be reviewed does not mean it
contains anything implicating anyone of anything. It means only that the
material has to be reviewed.

Nobody should draw any conclusions about anyone’s conduct
based on the fact that the FBI is reviewing these emails.

Nobody should draw the conclusion that anyone sent or
received additional classified material or that any material undermines the
FBI’s prior investigative conclusions based on the fact that the FBI is
reviewing these emails.

Comey has said nothing. Election Day is four days away — the
harm that has been done goes beyond this election and to the reputation of the
FBI and the growing distrust of the American system of justice.

— Matthew T. Mangino is of counsel with Luxenberg, Garbett,
Kelly & George P.C. His book, “The Executioner’s Toll, 2010,” was recently
released by McFarland Publishing. You can reach him at mattmangino.com and
follow him on Twitter at @MatthewTMangino.

About Matt

An analysis of crime and punishment from the perspective of a former prosecutor and current criminal justice practitioner.
The views expressed on this blog are solely those of the author and do not reflect the opinions or postions of any county, state or federal agency.